RAJBIR @ RAJBIR SINGH Vs. BALDEV SINGH AND OTHERS

JUDGEMENT

(1.) -This is an application to vacate the order passed by this court on 11.04.2016 directing delivery of the property to be made. With the consent of both counsel, the civil revision itself has been taken up for consideration and the application for vacating the order already passed therefore is disposed of as having become infructuous. Civil Revision No.5217 of 2013 I. Subject of lis: Legality of impleadment of subsequent purchasers from judgment debtor at the stage of execution The revision is against an order allowing an appeal filed by a third party to the proceeding seeking for impleadment after the decree was passed. The suit for specific performance was instituted in Civil Suit No.37 of 1991 on 03.04.1991. The petitioner was the plaintiff in the suit and the relief of specific enforcement was sought against one Kuldeep Singh son of Kartar Singh and his brother Mehtab Singh's son Inderjit Singh Jaggi. Pending suit, there was an application for restraint against alienation which the court also issued on 06.04.1991, but it would appear that in spite of an order of restraint, the defendants in suit purported to have sold the property on 26.04.1991. The purchasers were, however, not made parties and subsequently, the defendants, who had entered the contest, remained ex parte. An application to set aside the ex parte order was dismissed but later the suit for specific performance was decreed on 28.11.2002. The decree holder-petitioner filed an execution petition on 08.02.2003 to secure a sale deed and the objections taken by the judgment debtor were dismissed in the year 2004 itself and the sale deed was also executed subsequently on 23.07.2010. II. Additional point of relevance: subsequent purchasers have elected to file also an independent suit to challenge the decree put in execution

(2.) The persons at whose instance the present revision arises are admittedly purchasers pending suit and after its institution on 03.04.1991. Their purchases were also subsequent to the order of injunction against alienation passed by the court on 06.04.1991. They are reported to have filed a suit on 08.10.2008 to challenge the decree which has been passed in Civil Suit No.37 of 1991 and decreed on 28.11.2002 contending that the decree obtained was fraudulent. The said suit is said to be still pending. Respondents 1 to 4 were setting up an earlier agreement of sale to the decree holder and their contention was that their own purchase although pending suit was pursuant to a power of attorney which was executed in their favour, under the terms of which, property was also delivered possession. Without any reference to even the suit filed by them, respondents 1 to 4 moved an application for impleadment at the stage of execution for delivery of possession initiated at the instance of the decree holder under Order 22, Rule 10 Code of Civil Procedure claiming right as assignee from the defendants in suit. There was also an application for impleading the legal representatives of the judgment debtors. Both the applications were dismissed. Respondents 1 to 4 preferred appeals under Order 43 Code of Civil Procedure to the lower appellate court challenging the order dismissing the applications and the appellate court has allowed the impleadment. While allowing the application, the court was referring to the fact that subsequent purchaser even pending suit is a proper party to the proceeding and it would be necessary to allow for such an application. III. Interim direction given by this court, the basis

(3.) In a challenge brought to the order passed by the lower appellate court, I had noticed that the persons, who were seeking for impleadment, were actually purchasers during the pendency of suit for specific performance and their purchase was not merely hit by lis pendens but also hit by an interdict against sale passed by the trial court even prior to their purchase. Finding prima facie that there was clear obstructive tactic adopted by the subsequent purchasers after the institution of suit, I had passed an interim order allowing for delivery of possession to be taken without any obstruction. The order was passed in the presence of the counsel for the respondents 1 to 4. The application for vacating the said order is filed on a plea that respondents 1 to 4 are actually in possession of the property and the bona fides of the purchase will have to be considered at the stage of execution. Respondents 1 to 4 would reiterate an argument made before the lower appellate court and which was accepted by the lower appellate court. IV. Decisions that allow for impleadment of purchasers pending suit